Cultivaust Pty Ltd v State of Western Australia A11/1998 [1999] HCATrans 360 (7 October 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A11 of 1998

B e t w e e n -

CULTIVAUST PTY LTD

Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

Defendant

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 OCTOBER 1999, AT 9.38 AM

(Continued from 6/10/99)

Copyright in the High Court of Australia

GLEESON CJ: Yes, Mr Gray.

MR GRAY: May it please the Court, over the adjournment, in response to your Honour the Chief Justice's suggestion, Mr Meadows and myself discussed this matter. If the Court pleases, we do have a measure of agreement, subject to the Court's approval.

My client wishes to take up the question of the invalidity of the Western Australian Act and, in particular, section 22, because of its extraterritorial effect. We would propose to amend the case stated, and if necessary, the pleadings to raise that point.

Mr Meadows has indicated that he will obviously be trying to consider that. I might say, from our point of view, given a little time, we would be better able to assist the Court. We can advance the argument this morning but it would be in short form.

The other matter that, if the Court pleases, has arisen, is that there is a difference between the concessions made by Western Australia in the pleadings, and the concession they advance in their argument. In the argument the concessions are qualified by purposive matter, and also more recently there has arisen the distinction between what is said to be positive authority and a negative authority position. As I understand it, the State of Western Australia wishes to advance the concessions, perhaps, the more qualified form.

That, in turn, has had us reflect on the terms of the current case stated and we would wish to amend that, to broaden it, in the light of those arguments, in particular to broaden it in terms that the Court would declare whether section 22 was invalid and, if so, to what extent, a little more broadly than we have currently worded it. Now, if the Court pleases, it did seem to us that in those circumstances, particularly in regard to the territorial question, that that in turn is likely to lead to an argument about the Union Steamship Case and, in particular, section 2 of the Australia Act, which may well involve section 78B notices.

Might I say in regard to the other matter the Court raises during the argument yesterday, the question of section 92, from my side we are still considering that matter and are not in a position to other than reserve our position. We have not been able to overnight have a defined attitude on that; we do see an area in which it can arise, but we do see it being a very debatable matter.

McHUGH J: It can only arise in respect of the old Act.

MR GRAY: Yes.

KIRBY J: Did you indicate that you were going to amend your pleading to make a claim in some way formulated for damages?

MR GRAY: That is a matter under consideration. The other matter where we would wish to consider amending the pleading, is to plead matters in regard to my client's intention to make absolutely plain they wish to enliven the Croome v State of Tasmania jurisdiction for a declaration. Now, if the Court pleases, that is an unsatisfactory position from the Court's point of view, but we - - -

KIRBY J: Is all of this leading to an application to adjourn the hearing, is it?

MR GRAY: Yes, we would see that as being the way in which the Court would be best assisted, but we are entirely in the Court's hands. We would suggest - - -

GLEESON CJ: Let us hear what the Solicitor has to say. We will hear what Mr Meadows has to say.

MR GRAY: Thank you, if the Court pleases.

MR MEADOWS: May it please the Court, in light of what my learned friend has said in our discussions, I would accept that it would be more appropriate for this matter to be adjourned off for these matters to be fixed up if it - - -

GLEESON CJ: Could you tell us what is the submission you are going to make in relation to the reach of section 22?

MR MEADOWS: Yes I can, your Honour. Very shortly, our submission is that on its proper construction the Act applies or relates only to - this is the latest Act, your Honour.

GLEESON CJ: The current Act.

MR MEADOWS: Yes, the current Act relates only to exports from a place in Western Australia to a place outside of Australia of grain grown in Western Australia.

KIRBY J: Does that mean that the plaintiff cannot grow grain or license grain of its origin in Western Australia, in your interpretation of the law?

MR MEADOWS: It can certainly grow the grain. It can certainly license people to grow the grain.

GAUDRON J: And can I ask the question, in the word "grain" do you include seed barley?

MR MEADOWS: In fact, we submit that it only relates to grain which is to be used as seed.

GAUDRON J: That the Act only relates?

MR MEADOWS: No. I am sorry, we are into the PBR Act.

GAUDRON J: No.

MR MEADOWS: Yes, we say it applies to all grain.

GAUDRON J: Whether seed or treated otherwise, to be malted?

MR MEADOWS: Yes.

GLEESON CJ: Grain grown in Western Australia?

MR MEADOWS: Yes, your Honour.

GLEESON CJ: And it applies to the export from the Commonwealth of grain grown in Western Australia?

MR MEADOWS: Yes, your Honour.

GLEESON CJ: The export from anywhere in the Commonwealth or the export from - - -

MR MEADOWS: No, from Western Australia.

McHUGH J: Does your argument draw any distinction between the plant and its produce at all?

MR MEADOWS: Our Act only relates to grain.

McHUGH J: Yes.

MR MEADOWS: In the course of argument we were going to point out that there could easily be a distinction between the plant or a part of the plant and grain. For example, if you take tobacco, the leaf of tobacco is a part of the plant whereas the seed of tobacco is the propagating material.

GAUDRON J: I believe you can grow plants from any bit of a plant these days.

MR MEADOWS: Well, your Honour has an advantage on me in that respect.

GLEESON CJ: On me too.

KIRBY J: But is that not how plants grow?

HAYNE J: Your Honour may, I cannot.

KIRBY J: Plenty of people grow plants by just taking off a twig and then shoving the twig in the ground and it grows.

GAUDRON J: Or a leaf.

MR MEADOWS: Yes, well, that is propagating material, we will accept but - - -

KIRBY J: It is not seed.

MR MEADOWS: It is not seed, I accept that.

GUMMOW J: Given your construction of section 22, what is then your submission on inconsistency?

MR MEADOWS: Well, we did make the concession in our pleading and we did that on instructions and as presently instructed I would be unable to withdraw that concession although,

in light of some of the wisdom that has fallen from the Bench in the last 48 hours, it may be that we would want to reconsider the extent of our concession.

McHUGH J: I must say when I first read the pleadings I was surprised that the concession had been made myself.

MR MEADOWS: Yes. It needs to be viewed in the context of the way in which the case has developed in that the State did not originally challenge the validity of the legislation and - I am not sure I should say this, but saw some merit in its provisions and was therefore much more ready therefore to make a concession, provided that it was limited to the sale of grain for propagating purposes.

GUMMOW J: Can you just help me with section 29, which is the vesting section.

MR MEADOWS: Of which Act, your Honour?

GUMMOW J: Of the State Act. You see section 29(1) opens with the words, "Where the Grain Pool receives grain for a pool". What is there, if anything, that makes the receipt compulsory? In other words, is there any legal compulsion?

McHUGH J: Yes, do you give a notice? How do you actually force them to give it to you?

MR MEADOWS: I suppose the answer to that is that it is an offence to - - -

KIRBY J: The criminal sanctions - - -

MR MEADOWS: Yes, it is an offence to attempt to export other than through the Grain Pool.

HAYNE J: You can sell it domestically?

MR MEADOWS: Yes, you can.

GUMMOW J: So it is really commercial, the compulsion, really.

KIRBY J: Well, criminal sanctions are not - - -

GUMMOW J: You can keep it.

MR MEADOWS: You can keep it; you can sell it locally; but if you wish to export it you can only do it through the Grain Pool.

KIRBY J: Could you just clarify for me, do you therefore support the application for adjournment of the proceedings today?

MR MEADOWS: We can understand why it is sought, and we would not oppose it, your Honour.

KIRBY J: Where does that leave the relationship between this proceeding, and the proceeding on which we now stand reserved?

MR MEADOWS: This proceeding, if you look at the case stated, proceeded on the assumption that both the Variety Act and the Breeder's Act were valid. I suppose that before consideration of issues raised in these proceedings, that question must first be answered.

KIRBY J: So that if that is determined in favour of validity, then this issue remains alive. If it is not determined against validity, many of the issues in this application would have to be reconsidered.

MR MEADOWS: Yes. In fact, we would submit that they would fall away.

KIRBY J: Yes.

GLEESON CJ: Does it follow from that that a possibility might be that if this case is going to be adjourned, it should be adjourned until some time after judgment has been given in the other case so that the parties who are apparently engaged in a fairly substantial rethinking of their forensic positions in relation to this litigation could take that on board also?

MR MEADOWS: I would have to accept that that has some merit, your Honour, but I am not sure my learned friend would agree with that.

GLEESON CJ: All right. Thank you, Mr Solicitor. Mr Gray, do you dispute the construction of section 22?

MR GRAY: Yes, we do. Having reflected on it overnight, there is no provision in the Western Australia Interpretation Act that allows a reading down as to locality. There is a provision of that nature in most State Acts but not in Western Australia.

KIRBY J: Would there not be a general constitutional principle or a general principle of interpretation of statutes that may be relevant? You would read a statute of a State as referring to the State and only the State.

MR GRAY: Yes, but the difficulty here is that there is a definition in the Acts Interpretation Act of "Commonwealth" to mean "Commonwealth of Australia" and there are other sections, in particular, section 18, that does impact on it as well when it deals with the question of purpose.

GUMMOW J: Now, this repleading exercis: I take it from what you and the Solicitor have been saying it would not shut out the possibility of a demurrer, would it?

MR GRAY: No, it would not.

HAYNE J: Depending on how many facts you actually plead.

MR GRAY: Yes, I think that if the Court pleases, obviously, we will be very mindful of the matters that the Court mentioned yesterday.

McHUGH J: If the matter is adjourned, can counsel go back to the more traditional way of setting out the facts in a case stated? There may be old instances of cases in the present form but this present way of stating a case seems to be very much a modern development. Parties do not seem to be prepared to make the concessions about facts. They rely on what is in their pleading and what is in the other side's pleading, and then you are asked to determine the question on that basis and I am on record as saying I will not do it. I find it very unsatisfactory myself to - - -

MR GRAY: Might I say, your Honour, overnight we attempted to draw a document in my friends' agreement, but, not surprisingly, they could not get instructions on some of the aspects of it, but we did have in mind a case stated in the more conventional position that your Honour has referred to and we would anticipate that would be done.

GLEESON CJ: And what do you say about the proposal that the matter, if it is to be adjourned today, should not be brought on for further hearing until judgment has been given in the proceedings on which we stand reserved?

MR GRAY: We would see that as a matter for the Court and we do see the good sense of it and if the Court is adverse to our position in that matter, much of this would become moot, but from my client's point of view it would naturally press for the earlier state - - -

GLEESON CJ: Well, we could leave that position flexible and we could just indicate an inclination at this stage.

MR GRAY: Yes, and we were wondering if it was convenient to the Court, whether, on being adjourned on these intimations, that we could be at liberty to apply to the judge who stated the case for her further directions?

GLEESON CJ: I think currently you can be at liberty to apply to me.

MR GRAY: If the Court pleases.

GLEESON CJ: All right then, on the application of - yes, Mr Solicitor.

MR BENNETT: Your Honour, first, we have no objection to the proposed course. We would support the suggestion about the intimation concerning relisting. May I just say one thing which I was going to say in the course of my argument which would - - -

GUMMOW J: You are not a party, are you?

HAYNE J: Are you a party to this?

MR BENNETT: I am an intervener in the second case. May I just say one thing I was going to say in the course of my argument which related to the first case concerning Mr Griffith's reply, and I have told him of my intention to say this. That was in relation to his argument about the absence of a need for newness, to refer your Honours to section 54(2) of the Breeder's Act. As I say, I have told Mr Griffith I intended to say that to your Honours. If the Court pleases.

GLEESON CJ: Thank you. Does anybody else want to say anything about this?

Then, on the application of Cultivaust, and noting that there is no opposition from the State of Western Australia or any intervener, the further hearing of this matter will be adjourned, to be relisted on a date to be arranged between the parties and the Court.

Although the position in this respect is not absolute, the Court would indicate that at present, unless there is any change of circumstances, it would appear appropriate that the matter not be relisted until after judgment has been delivered in the case of The Grain Pool of Western Australia v The Commonwealth in which we have reserved our decision.

Before the matter is relisted for further hearing, it is to be listed before me for such directions as may be necessary in relation to the future progress of the case.

We will adjourn until 10.15 am.

AT 9.55 AM THE MATTER WAS ADJOURNED